LET’S HEAR IT FOR STRICT CONSTRUCTIONISM, V. 3, PART 3

September 7, 2006

Column No. 120
By Steven Jonas, MD, MPH - September 7, 2006

George Bush has said on many occasions that when it comes to the Constitution and the appointment of Federal judges at all three levels, he is an “Original Intentionist” or “Strict Constructionist.” He has also told us more than once that his two favorite Supreme Court Justices (that is before the appointments of Roberts and Alito at least) are Scalia and Thomas. According to Bush they are “Original Intentionists” par excellence. As we saw in the first column in this series (published on August 3, 2006), Scalia has a very interesting notion of what “Original Intention” and “Strict Constructionism” actually are. He has told us on more than one occasion that among other things they mean that the Constitution is over-laid by something called “Natural Law,” handed down by “God.” That there is no such wording remotely referring to such a matter in the Constitution itself would seem to be a mere detail of, dare I say it, interpretation, for Scalia. Then there was his statement that his decision in the Hamdan case was based on the fact that he had a son on the battlefield in Afghanistan, where Mr. Hamdan happened to have been captured. An interesting interpretation of those “bonds of a dead document” by which Scalia likes to tell us he is bound when it comes to something like, oh let us say, a matter of civil rights or liberties.

In the light of what Bush’s favorite Supreme Court Justice means when he says “Original Intent” and “Strict Construction,” I thought that it would be useful to look at what Bush himself means when he uses those words. It would appear very much to be consistent with what we might call the “Scalia Doctrine.”

For example, the Fourth Amendment to the US Constitution reads:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

According to Bush the strict construction of this language means that the President on his own authority can conduct warrantless searches if he deems it necessary to preserve something he calls “national security.”

The Constitution, using declaratory language, rests the power to declare war in the Congress. According to Bush the strict construction of this language means that when, absent a formal Congressional declaration, he puts the US armed forces into a “war” in the vernacular sense of the term, which means that war has been declared in the Constitutional sense as well. It also means that Bush thinks that, under the Constitution, he can send US forces into combat overseas, without any kind of Congressional authorization before the fact, on any pretext he pleases, just as long as he happens to include the word “terror” in his description of his pretext.

The Original Intent of the Constitutional Commander-in-Chief clause is not clear, except that it refers to the Army, the Navy, and “the militia.” In a document that is supposed by the Right not to be open to interpretation, it is a highly interpretable article. However, it has never been interpreted as Bush is interpreting it. What happened to Truman when he tried to take over the nation’s steel mills in time of war to prevent a strike is instructive. His move was disallowed by the Supreme Court, and at the time just about every major politician of both parties thought that that was a fine decision. Here is the famous quote from Justice Robert Jackson on that one:

"His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making branch is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role."

But for the Bush version of “Strict Constructionism,” never mind. Actually, if one were to literally follow the Constitutional language, what Scalia says he is bound by but in practice certainly is not, Bush would be Commander-in-Chief neither of the Air Force nor the National Security Agency because they are not specifically mentioned in the document. But according to Bush, the Original Intent of the Commander-in-Chief clause is that he can do anything he likes, on both the legislative and judicial (see Guantanamo, Padilla, Abu Ghraib, Hamdan, and etc.) sides, as long as he states that the nation is at war and under the threat of “terrorism.”

The Patriot Act over-rides not only the Fourth, but also the Fifth (due process) and Sixth (jury trial rights in criminal cases) Amendments. I guess that the power to do such over-rides, actually first taken by the Congress before it handed it to the Executive Branch, comes under the Bush definition of “Original Intent” and “Strict Construction” as well. However, it just so happens that no exceptions were built into the Constitution by the framers, in any clear or even not-so-clear language of any kind.

“Vice-President” Cheney's original objection to the supposed torture prohibition legislation that was eventually passed by Congress was not based on the grounds that torture is a good thing to have in one’s quiver (although he may well believe that; we don’t know). Rather his pitch revolved around his claim that prohibiting its use by the President would interfere with Presidential power to what he wants to do “in time of war” (whether in the vernacular or the Constitutional sense).

The “Signing Statement” (which the Georgites claim allows the President to over-ride legislation he doesn’t like) system plays right into this one. I have looked at the Constitution in detail, but I can find nothing that says, as noted in last week’s column, that legislative authority is shared between the legislative and executive branches. Nor can I find any reference to “Presidential Signing Statements” at all, whether they would have legal standing or not. The Constitution gives the President veto power, of course, subject to clearly stated checks and balances. But except for political grandstanding purposes, as in the stem cell controversy, Bush has not used it. In my view, this was done on purpose to give supposed authority of some sort to his “Signing Statements” in which he claims ha can ignore Congressionally passed legislation for whatever whim or reason he might put forward. (That the American Bar Association has recently come to the same conclusion that on this matter first expressed in a column of mine dated January 26, 2006 is a matter most pleasing to me.) Another score for the Bush meaning of “Original Intent.”

Finally, as my good friend Jack Dalton said some time back:

“Was it not George W. Bush who stated 5 years ago, ‘…this would be much easier if this were a dictatorship, as long as I was the dictator?’ Was it not George W. Bush who was quoted recently [as] stating, ‘The Constitution is just a goddamn piece of paper?’ “(Jack's Straight-Speak 1-2-06, http://jack-dalton.blogspot.com/).

But hey, you can’t blame George. It’s in his genes. His Dad was quoted as saying something similar about dictatorship when he was President. His grandfather, Prescott Bush, stopped his financial dealings with Nazi Germany in February, 1942 only when FDR threatened to prosecute him under the Trading with the Enemy Act. (Hitler had declared war on the US on December 8, 1941 --- yes, Hitler, as surprised by Pearl Harbor as we were, reluctantly declared war on us under a treaty obligation he had to Japan; President Roosevelt did not first declare war on him.) And a maternal great-grandfather, George Herbert Walker, began financing Hitler and the German Nazi Party in 1924. With this background, it is only natural that George W. Bush’s interpretation of the terms “Original Intent” and “Strict Constructionism” mean that the Constitution, yes indeed, does provide for a Presidential dictatorship, just as long as one George Bush or another is the dictator. Oh well, I guess that there is something new to learn every day.